County DA's office sued for age discrimination

WEST CHESTER – Two former Chester County prosecutors have filed an age discrimination lawsuit, claiming they were pushed out of their jobs within days of a change in leadership in the District Attorney’s office.

Former Assistant District Attorney Edward Gallen and former Chief Deputy District Attorney Robert Miller contend in their lawsuit that incoming District Attorney Thomas Hogan terminated them in January 2012 despite their experience and exemplary work, replacing them with younger and less qualified attorneys.

Gallen, of Chester Springs, was 65 years old when he left the DA’s office, and Miller, of West Chester, was 54. The suit contends that they were terminated because of their age, in violation of federal law. They are asking for a monetary award to make up for the age discrimination and the loss of pay and benefits they suffered.

Advertisement

The suit lists both the District Attorney’s Office and the county as defendants.

On Wednesday, a county official took issue with the assertions of age discrimination made against Hogan’s office and the county, saying they “would never tolerate age discrimination and, further, value the contribution of all its employees regardless of age.”

Indeed, background accounts of changes in the prosecutor’s office indicate that Miller, at least, had suggested he had been forced out not so much because of his age but because of his handling of a case involving Hogan’s former law firm, Lamb McErlane of West Chester. And although county records do show Gallen was terminated, he also submitted a letter of retirement at the same time.

The claim was filed in U.S. District Court in Philadelphia on June 11 by attorney John A. Gallagher of Paoli, who specializes in employment law cases.

No hearing date has been set for the lawsuit.

The suit states that both Gallen and Miller filed complaints about their termination claims with the U.S. Equal Employment Opportunity Commission, or EEOC, in 2012, but that those complaints have not been acted on.

Gallen, who filed his EEOC claim in April 2012, was assigned to handle juvenile probation cases in the years he spent in the office between 2000 and 2012. The suit contends he was “highly qualified” and had “established a record of diligence and success.”

At the time, juvenile crime prosecutors were at a premium in the wake of the “Kids for Cash” scandal in Luzerne County, the suit contends. “Juvenile prosecutions, whenever possible, should be viewed as a specialty,” the action quotes the Pennsylvania District Attorney’s Association as saying.

Miller, who began his career in the county DA’s office in 1988, had been promoted in 2003 by then DA Joseph Carroll to a chief supervisory position in the office, overseeing all trials. He was “routinely and continually awarded the highest personnel evaluation grades and was never subjected to discipline of any kind.”

Nevertheless, Hogan terminated the two men, as well as two other prosecutors who were over the age of 50 at the time, soon after taking office in January 2012. He did so without “cause or opportunity to resolve any perceived problems. Both were of such experience that they should have been retained by Hogan,” the suit asserts.

The suit says they were replaced by significantly younger and far less experienced attorneys.

“Given my clients’ tenure and achievements prior to their terminations, the contemporaneous terminations of other older employees carried out by the DA in January 2012, the comments made by Mr. Hogan at the time of the terminations and the age of the replacement employees, we have surmised that the only possible explanation for their terminations was age-based animus,” Gallagher said in a statement. “We expect to prove that in court.”

Although age discrimination claims have skyrocketed over the years – from 16,000 in 1997 to 25,000 or more in 2008 – some observers say that changes in the law have made such allegations harder to prove.

One successful case involved a 54-year-old Hawaii woman whose employer fired her after remarking that she looked like “a bag of bones” and that she “sounded old on the telephone.” She was awarded more than $193,000 in damages.

But courts have also begun requiring that age discrimination cases show bias solely because of age and not other, linked, business questions. According to an analysis on forbes.com, terminating at-will employees who are older as a way to cut costs once would have meant a successful claim; now, age must be the sole motivating factor in the termination, not age coupled with cost saving, to be successful, the article stated.

At the time of the termination of Gallen, Miller, and prosecutors John Pavloff and Norman Pine, Hogan described his decisions in terms of a general reorganization of the office, with an emphasis on reducing expenses.

“We restructured the office based on our needs to maximize the efficiency of our office based on our budgetary restraints,” Hogan told the Daily Local News. “It is what every government offices needs to be doing today.”

Because the decisions involved “internal office personnel issues,” Hogan declined at the time to comment on what other factors might have gone into the process of terminations. “For every one of the individuals there were budget considerations and other considerations, but because it is a personnel issue I am not going to go into details on them,” he said.

For his part, Miller suggested at the time that he was forced out because he had won a conviction in a case in which the son of one of Hogan’s law firm partners was accused of killing a Norristown couple in a head-on collision on Route 202 after the man had smoked marijuana and drank beer. The man was sentenced to a state prison term, over the objections of the Lamb firm, which represented him at trial.

County Solicitor Thomas Whiteman, in a statement issued on behalf of the county and the DA’s office Wednesday, declined to address the individual claims made in the lawsuit.

However, he pointed to several “illustrative facts” that he said would counter the suit’s assertion that age played a singular role in the terminations. Among them, he said,

· The county employs and retains hundreds of employees over the age of 50 in a variety of support, managerial and other positions;

· The DA’s 2012 “Prosecutor of the Year”, Deputy District Attorney Ronald Yen, was over the age of 50, as was office’s “Detective of the Year,” Kenneth Beam;

· Hogan promoted a detective, Kevin Dykes, who is over 50, to the position of lieutenant of the Chester County Detectives.

The DAs office “has become a model of professionalism and integrity, fighting crime every day on behalf of our citizens,” Whiteman’s statement read. ”We are proud of the work of all our agencies and offices – and the employees who make them operate – in our on-going effort to keep Chester County a safe place to live, work, and raise a family.